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Thursday, December 26, 2013

Hamilton County Superior Court Judge Daniel Pfleging issued an order on December 23, two days before Christmas, denying former Secretary of State Charlie White's petition for post-conviction relief based on ineffective counsel he argues that he received from Carl Brizzi, who failed to put on a defense during a jury trial in 2012 that found him guilty on six of seven vote fraud-related charges special prosecutors brought against him. Judge Pfleging had earlier denied a number of arguments White had made for a new trial, which remain ripe for review at the appellate court level, in addition to the ineffective counsel argument. Those include the following:

The fact that the state brought criminal charges against him to remove him from office instead of a quo warranto action;

The fact that White was a de facto elected official the state could not have charged him with theft for drawing his salary as a duly-elected town council member in Fishers;

Jurors were provided an erroneous legal definition of "residency" for voting purposes in determining whether he had improperly registered and voted in the wrong precinct in a single election;

Jurors were provided erroneous jury instructions when the trial judge allowed a statute dealing with vote fraud that was clearly written to apply only in the plural to be applied singularly to convict White.

The judge erred in allowing White to be convicted twice for the same offense rather than merging the offenses into a single offense as required by law; and

White's equal protection rights were denied when he was convicted of a novel interpretation of Indiana's voter fraud laws that essentially created a class of one crime upon which the law was applied to him to obtain felony convictions that would force his removal him from office.

The Indiana Law Blog has provided a copy of Judge Pfleging's Order, which you can view here. The Order essentially rubber stamps the views of special prosecutors Dan Sigler and John Dowd with respect to White's allegations that Brizzi provided ineffective counsel during his trial. Most objective legal observers agree that Brizz's representation of White during the trial was a total farce. Judge Pfleging saw no prejudice resulting from Brizzi's decision during voir dire to ask jurors if they agreed jury nullification was appropriate in a case involving a charges for which a prosecutor rarely, if ever, prosecutes a person for a technical violation of the law, implying to prospective jurors that White had violated the laws for which he had been charged. Pfleging reasoned that Brizzi didn't argue the inappropriate defense during the trial once the jurors were seated or during closing argument.

Brizzi refused to put on a defense because he believed that the state had failed to prove any of the charges against White. White claimed that Brizzi sprung that defense strategy on him at the last minute without discussing it with him. Super Bowl weekend in Indianapolis was also fast approaching at that point, although I'm sure that Brizzi's desire to take part in the big party downtown had nothing to do with his decision not to put on a case. Jurors in the case couldn't be put up at a hotel for sequestration because all area hotel rooms were booked up with out-of-town visitors attending the Super Bowl game Sunday night. They were instructed to continue deliberating into the wee hours of that weekend's Saturday after the case went to the jury shortly after mid-day on Friday, an instruction with which the trial court judge indicated the jurors did not object.

Brizzi mistakenly believed that all of the documentary evidence to which the parties had stipulated prior to trial that White had intended to offer to prove that he resided for voting registration purposes at his ex-wife's home at the time he registered to vote and cast a single ballot in one election using that registered voting address had actually been tendered at trial even though he never tendered any of the evidence during trial. In finding that Brizzi did not provide ineffective counsel, Judge Pfleging's findings of fact in his Order makes no mention of that glaring omission on Brizzi's part. Judge Pfleging's order draws negative inferences about virtually every potential witness Brizzi failed to call, including those who testified at the state Recount Commission hearing on White's behalf, which concluded that White had not violated Indiana's vote fraud statutes for purposes of qualifying as a candidate for office in 2010. In castigating White's expert GPS witness, the Order makes no issue of the substance of what his testimony would have been, which if offered, would have tended to prove White primarily resided at his ex-wife's home during the time in question. It should be pointed out that Judge Pfleging's daughter works at the same law firm that is defending Brizzi in the malpractice lawsuit White has filed against his former trial counsel. Judge Pfleging offered to recuse himself from hearing White's post-conviction relief petition due to the appearance of a conflict of interest but White's attorney waived his recusal offer.

White is going forward with his appeal to the Court of Appeals. That prospect should make many Republican and Democratic officials across the state of Indiana very uneasy if the convictions against White stand. Dozens and dozens of elected officials and candidates have handled their voting registration and balloting in the past based upon the same laws and court opinions upon which White relied but which this lone trial court in Hamilton County rejected in toto. White stands alone as the only candidate for office in the state's modern history to which a harsh, exacting residency standard has been applied for voting purposes. If the Charlie White standard had been applied to Evan Bayh and Richard Lugar, both would have faced multiple felony charges. In order to uphold the convictions against White, the appeals court will have to stand Indiana residency and vote fraud laws on their head, which in my opinion is precisely what these over zealous special prosecutors and the trial court permitted to happen in that courtroom in Hamilton County nearly two years ago.

UPDATE: WISH-TV's political reporter Jim Shella proves once again why he's nothing but a stooge for the corrupt insiders who run this state. Here's his take on the denial of White's PCR motion:

Former Secretary of State Charlie White has lost his bid for a new trial. A Hamilton County judge rejected his argument that Carl Brizzi was incompetent as a defense attorney.

Let’s review:

White lied to voters about where he lived and where he voted. He was convicted of voter fraud. He was thrown out of office.

He blamed Brizzi. He paid another attorney to pursue post conviction relief. He lost.

Now Charlie White says he will appeal his conviction.

That’s a small government Republican tying up our court system with frivolous pleadings.

Did I mention that White has a law degree of his own?

Wouldn’t his time be better spent finding a new career?

This is the same reporter who personally attacked those who questioned the legality of Richard Lugar registering to vote and repeatedly casting a vote from a home in Indianapolis which he had sold nearly 36 years earlier. Yet he thinks it's perfectly normal for a candidate between homes and marriages to be charged and convicted of multiple felonies for casting a single ballot in a single election using his ex-wife's home as his residence.

Your remarks on Jim Shella have hit the target with the precision of a laser guided arrow or drone. The Program Indiana Week in Review is weak effort to inform.

The Republican or Democrat or any other guests on Indiana Week in Review seem to agree on the Crony-Capitalism rampant in this City and State. Build a new stadium at tax payer expense they all agree, we should. I do not recall any discussion (although I must confess I listen to the Indiana Week in Review rarely any more) on the downsides of the Rockport Coal Gasification.

Charlie White must have crossed swords at some point with the "Club."

Residency for voting or political office should be a pretty simple thing. I understand an elected Federal official would need a home in the DC Area, but at the least they should have a residence in the district they represent. Likewise an elected State or Local Official should have their primary residence in the district they represent.

Look at his prior behavior when he had a famed attorney representing him. It was apparently contrary to his attorney advice."

If you're referring to Zahn, his advice to Charlie was to accept a plea agreement that would force him to resign his office. Yeah, plead guilty to a crime you didn't commit, lose your office and still face the suspension of your law license. This case has drifted way off into the twilight zone and should scare the hell out of anyone who would buck the system. Someone has to stand up to these people and put them in their place. Dan Sigler handled his voter registration when he was in between marriages and residences the exact same way as Charlie. He realized that fact during the grand jury proceedings and ran back home and quickly changed his registration to reflect where he was actually residing. Did he put the actual address where he was residing on his marriage license application? Hell no. Has anyone charged him with vote fraud or perjury? Hell no.

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